[Cite as State v. Richmond,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96155

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

DEMETRIUS RICHMOND DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-540291

BEFORE: Sweeney, J., Kilbane, A.J., and Cooney, J.

RELEASED AND JOURNALIZED: December 15, 2011

ATTORNEY FOR APPELLANT Paul Mancino, Jr., Esq. 75 Public Square, Suite 1016 Cleveland, Ohio 44113-2098

ATTORNEYS FOR APPELLEE

William D. Mason, Esq. Cuyahoga County Prosecutor By: Mahmoud Awadallah, Esq. William Leland, Esq. Assistant Prosecuting Attorneys The Justice Center 1200 Ontario Street Cleveland, Ohio 44113

JAMES J. SWEENEY, J.:

{¶ 1} Defendant-appellant Demetrius Richmond (“defendant”) appeals his

convictions and consecutive sentences for rape, kidnapping, felonious assault,

domestic violence, and child endangering. After reviewing the facts of the case

and pertinent law, we affirm in part and remand for a limited sentencing hearing to

address the issues of merger of allied offenses and court costs.

{¶ 2} On July 30, 2010, defendant was charged with 11 counts relating to

abuse of his girlfriend’s son, including domestic violence, five counts of felony

child endangering, three counts of misdemeanor child endangering, felonious

assault, rape, and kidnapping. The indictment included sexually violent predator

and repeat violent offender specifications. The case proceeded to a jury trial

where the following evidence was presented: {¶ 3} In 2003, defendant moved in with his girlfriend K.W. (“mother”) and

her four children C.F., T.F.1., T.F.2., and D.F. The oldest of the children, C.F., is

the alleged victim in this case. According to testimony from mother, C.F., and

D.F., defendant physically and sexually abused C.F. over a period of several

years.

{¶ 4} For example, in late August 2005, when C.F. was 11 years old,

defendant threw C.F. out of bed, whipped him with a belt, and ordered him to take

a shower. While C.F. was in the shower, defendant grabbed C.F.’s hand and

threw him into the air. C.F. landed on the sink and fell to the ground. As a

result of this incident, C.F. sustained a fracture in his upper arm near his shoulder.

{¶ 5} Later that day, C.F. complained to the babysitter that his shoulder

hurt. The babysitter removed C.F.’s shirt and noticed that one shoulder

appeared to be higher than the other, and the injured shoulder was swollen and

hot. C.F. told the babysitter that defendant had knocked him down in the shower

and caused the injury. The babysitter called mother and informed her of the

injury, however, mother did not take C.F. to the hospital until three days later when

her sister, W.C. (“aunt”), threatened mother that she would call the police if mother

did not take C.F. to the hospital. Subsequent x-rays confirmed that C.F.’s arm

was fractured.

{¶ 6} When aunt took C.F. to a follow-up visit with the doctor, C.F.

disclosed that defendant had been abusing him. Mother and the children briefly

moved in with aunt, but soon moved back in with defendant. {¶ 7} Another example of the abuse occurred one night in October 2007,

when C.F. was walking to the bathroom. Defendant grabbed C.F., took his pants

off, and pulled him down onto a chair where defendant anally raped C.F.

According to C.F.’s testimony, the rape lasted “10 or 15 minutes,” defendant “was

holding [him] down, [and] it hurt.”

{¶ 8} After the rape, mother and defendant sent C.F. to the store. C.F.

testified that he “was thinking about, should I go somewhere. * * * I wanted to kill

myself. * * * I got my bike and rode off.” Asked where he was going, C.F.

testified, “Far, far away from [defendant]. Far, far away from my home.” C.F.

rode from his home on West 33rd Street and Lorain Avenue to Bay Village where

he knocked on the door of a random house. When the homeowner opened the

door, he found C.F. crying. C.F. stated that he had run away because he was

being abused and he was afraid to go home. The police arrived and took C.F. to

meet his mother, siblings, and social workers at a safe place.

{¶ 9} When the police arrived at the West 33rd Street house, they observed

a man standing outside, who immediately fled. The Cuyahoga County

Department of Child and Family Services (“CCDCFS”) and the Cleveland police

sex crimes unit investigated C.F.’s allegations of physical and sexual abuse.

Mother told the authorities that she was afraid of defendant, and she and her

children moved into a battered women’s shelter, where they stayed for 11 months.

CCDCFS’s investigation determined that the abuse allegations were

substantiated. {¶ 10} Mother testified, however, that she and the children continued to see

defendant during this time, and she admitted to lying to social workers about

visiting defendant and about the abuse. Eventually, mother told police she did

not want to prosecute defendant and would not allow investigators access to the

children. She and the children moved back in with defendant, and the case was

temporarily closed.

{¶ 11} By 2009, all of the children had been removed from mother’s custody.

The children’s maternal grandmother called the police because they were afraid

of defendant, who was still mother’s boyfriend. The case was reopened, and

Detective Georgia Hussein of the Cleveland police sex crimes unit interviewed

C.F., who was living at the Berea Children’s Home. C.F.’s initial reaction was relief

that “somebody finally believes me.” Det. Hussein also interviewed the other

siblings and mother, who refused to disclose defendant’s location. Det. Hussein

arrested her for obstructing justice, and she later agreed to cooperate in the

investigation to avoid an indictment.

{¶ 12} On November 15, 2010, the jury found defendant guilty on all counts.

The court found defendant guilty on the notice of prior conviction, repeat violent

offender, and sexual motivation specifications, but not guilty on the sexually violent

predator specification. The court sentenced defendant to an aggregate term of

28 years in prison.

{¶ 13} Defendant appeals and raises 14 assignments of error for our review.

In his first assignment of error, defendant argues as follows: {¶ 14} “I. Defendant was denied his constitutional right to a jury trial when

the court heard all specifications without a written jury waiver.”

{¶ 15} Specifically, defendant argues that the sexually violent predator

specification should have been tried to the jury.

{¶ 16} Pursuant to R.C. 2945.05, a valid jury waiver “shall be in writing,

signed by the defendant, and filed in said cause and made a part of the record

thereof.” However, R.C. 2971.02(A) states that, “In any case in which a sexually

violent predator specification is included in the indictment * * * charging a violent

sex offense * * * and in which the defendant is tried by a jury, the defendant may

elect to have the court instead of the jury determine the sexually violent predator

specification.”

{¶ 17} Thus, bifurcation of a sexually violent predator specification is

permissible at a defendant’s election to have the court, instead of a jury, decide

the issue. Additionally, specific statutory provisions prevail over general statutory

provisions. Trumbull Cty. Bd. Of Health v. Snyder (1996),

,

. The Ohio Supreme Court has also held that R.C. 2945.05 does

not apply to prior conviction specifications. State v. Nagel (1999),

,

(holding that “a specification is, by its very nature,

ancillary to, and completely dependent upon, the existence of the underlying

criminal charge or charges to which the specification is attached. Therefore, we

have difficulty understanding precisely how it is that R.C. 2945.05 could be found

to apply in circumstances where, as here, a defendant has received a jury trial on the merits of the underlying charges alleged in the indictment”). This court has

applied the same rationale to sexually violent predator specifications in State v.

Oldham (May 13,1999), Cuyahoga App. No. 73644.

{¶ 18} In the instant case, the court found defendant not guilty of the

sexually violent predator specification, therefore, defendant suffered no prejudice,

and his first assignment of error is overruled.

{¶ 19} In his second assignment of error, defendant argues the following:

{¶ 20} “II. Defendant was denied due process of law when the court

refused to examine the grand jury proceedings.”

{¶ 21} Defendant alleges that because two prior indictments against him

were dismissed the same day he proceeded to trial, disclosure of the grand jury

transcript would have revealed that the process was manipulated and the

prosecutors committed misconduct.

{¶ 22} Although there is a general rule of grand jury secrecy, the Ohio

Supreme Court recently identified a limited exeption in State v. Lang,

,

,

, ¶41:

{¶ 23} “[A]n accused is not entitled to review the transcript of grand jury

proceedings ‘unless the ends of justice require it and there is a showing by the

defense that a particularized need for disclosure exists which outweighs the need

for secrecy.’ A particularized need is established ‘when the circumstances reveal

a probability that the failure to provide the grand jury testimony will deny the defendant a fair trial.’ Determining whether a particularized need exists is a

matter within the trial court’s discretion.” (Internal citations omitted.)

{¶ 24} In the instant case, defendant fails to establish a particularized need

for the grand jury transcripts. “The fact that the grand jury indicted [a defendant]

on elevated charges is not in and of itself a sufficient showing of particularized

need.” State v. Benge (1996),

,

.

Additionally, Ohio courts have “determined that a particularized need cannot be

established on the basis of speculative pretrial allegations of potentially

inconsistent testimony.” State v. Perkins,

,

,

(citing State v. Godfrey,

,

,

).

{¶ 25} Accordingly, defendant’s second assignment of error is overruled.

{¶ 26} Defendant’s third assignment of error states the following:

{¶ 27} “III. Defendant was denied a fair trial and due process of law when a

social worker was allowed to testify as to the truth of the allegations based upon

interviews.”

{¶ 28} Specifically, defendant argues that the court improperly allowed a

social worker to testify that C.F.’s allegations were “substantiated,” because this

testimony amounted to an opinion as to the truthfulness of C.F.’s allegations.

{¶ 29} In State v. Boston (1989),

,

, the

Ohio Supreme Court held that in child sexual abuse cases, an expert may not give

his opinion as to the child’s veracity. However, this court has found that Boston does not apply when the child victim testifies and is subject to cross-examination.

See, e.g., State v. Manning, Cuyahoga App. No. 90326,

. This

court has also held that evidence of a social worker’s determination regarding

alleged abuse is acceptable, provided the social worker does not testify as to the

truthfulness or credibility of the victim. State v. Jackson, Cuyahoga App. No.

92531,

.

{¶ 30} In the case at hand, C.F. testified and was subject to

cross-examination.

{¶ 31} Moreover, CCDCFS social worker Michael Bockmiller did not offer an

opinion about C.F.’s credibility. He testified that he is qualified to render a

disposition of a case, as “substantiated, unsubstantiated, or indicated,” and that

these terms are not legal findings but agency determinations used to denote

whether counseling, police investigation, or medical treatment is necessary.

Bockmiller explained that a “substantiated” finding merely indicates that there is

corroborative evidence of abuse or neglect. Bockmiller never offered an opinion

on C.F.’s credibility or whether the alleged abuse occurred. He merely described

CCDCFS procedure when investigating allegations of abuse.

{¶ 32} Therefore, the third assignment of error is overruled.

{¶ 33} In his fourth assignment of error, defendant argues as follows:

{¶ 34} “IV. Defendant was denied his right of confrontation and

cross-examination when witnesses were allowed to testify as to information given

by other persons.” {¶ 35} We review issues concerning Confrontation Clause violations under a

de novo standard. State v. Babb, Cuyahoga App. No. 86294,

.

Pursuant to the Sixth Amendment to the United States Constitution, out-of-court

statements that are testimonial in nature are inadmissible unless the declarant is

unavailable and the defendant was given a prior opportunity for

cross-examination. Crawford v. Washington (2004),

,

,

. This test does not apply to nontestimonial hearsay.

{¶ 36} Thus, as a threshold matter, courts must determine whether

statements are testimonial before subjecting them to Crawford standards.

. Testimonial statements are, among other things, “statements that were

made under circumstances which would lead an objective witness reasonably to

believe that the statement would be available for use at a later trial.” (Internal

citations omitted.)

“In determining whether a statement is testimonial for

Confrontation Clause purposes, courts should focus on the expectation of the

declarant at the time of making the statement; the intent of a questioner is relevant

only if it could affect a reasonable declarant’s expectations.” State v. Stahl,

,

,

, paragraph two of syllabus.

{¶ 37} Defendant argues that the following statements violate Crawford:

mother’s testimony about what C.F. and a social worker stated to her; aunt’s

testimony about what babysitter stated to her; and Bay Village Police Detective

Kevin Krolkosky’s testimony about what C.F. stated to him. {¶ 38} Upon review we find that all declarants — C.F., social worker

Bockmiller, and babysitter — testified at trial and were subject to

cross-examination. The Crawford Court reiterated “that, when the declarant

appears for cross-examination at trial, the Confrontation Clause places no

constraints at all on the use of his prior testimonial statements. See California v.

Green,

,

,

(1970). * * * The Clause

does not bar admission of a statement so long as the declarant is present at trial

to defend or explain it.” Crawford,

at fn. 9.

{¶ 39} As Crawford and the Confrontation Clause have no bearing on the

instant case, defendant’s fourth assignment of error is overruled.

{¶ 40} In defendant’s fifth assignment of error, he argues the following:

{¶ 41} “V. Defendant was denied a fair trial when the court allowed

evidence of other bad acts and failed to give any limiting or curative instruction.”

{¶ 42} Specifically, defendant argues that mother’s testimony that he

routinely punched C.F. in the chest as a form of punishment, that he “was messing

with one or two of [her] kids,” and that she and defendant “used a lot of drugs * * *

together,” was unfairly prejudicial and in violation of Evid.R. 404(B).

{¶ 43} The decision to admit or exclude relevant evidence is within the

sound discretion of the trial court. State v. Bey (1999),

,

. Pursuant to Evid.R. 403(A), relevant evidence “is not

admissible if its probative value is substantially outweighed by the danger of unfair

prejudice, of confusion of the issues, or of misleading the jury.” Furthermore, Evid.R. 404(B) states that “[e]vidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show action in conformity

therewith. It may, however, be admissible for other purposes, such as proof of

motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident.” See, also, R.C. 2945.59.

{¶ 44} The “other acts” testimony at issue in the instant case does not

squarely fall into one of the enumerated exceptions listed in Evid.R. 404(B) for the

admission of evidence. However, defendant did not request, nor did the court

give to the jury, a limiting instuction. Accordingly, we must consider whether this

constituted plain error. Crim.R. 52(B); State v. Moreland (1990),

,

.

{¶ 45} Assuming the testimony was improper, upon review, we find any error

harmless given the overwhelming evidence of defendant’s guilt, which was

corroborated by numerous witnesses. See State v. Williams (1988),

,

(holding that “[a]lthough the state clearly

overstepped the bounds of proper judicial inquiry in cross-examining appellant, we

are unable to agree that the error was materially prejudicial to appellant. After a

thorough review of the record, we do not doubt that the remaining, properly

introduced evidence overwhelmingly establishes appellant’s guilt”).

{¶ 46} Accordingly, defendant’s fifth assignment of error is overruled.

{¶ 47} In his sixth assignment of error, defendant argues the following: {¶ 48} “VI. Defendant was denied due process of law when * * * he was

tried, convicted and sentenced on offenses for which the statute of limitations had

expired.”

{¶ 49} R.C. 2901.13(A)(1)(b) provides that the statute of limitations for a

misdemeanor is two years. The domestic violence charge and one count of child

endangering allegedly occurred between August 22, 2005 and October 19, 2007.

The indictment against defendant was filed on July 30, 2010. Thus, these two

misdemeanor offenses were charged more than two years after their occurrence.

{¶ 50} However, because defendant has already served his sentence on

these charges, this assignment of error is moot. On January 24, 2011, the court

sentenced Richmond to six months on both counts to be served concurrent to his

aggregate 28-year prison sentence. The Ohio Supreme Court has held that

“[w]here a defendant, convicted of a criminal offense, has * * * completed the

sentence for that offense, an appeal is moot when no evidence is offered from

which an inference could be drawn that defendant would suffer some collateral

disability or loss of civil rights from the judgment or conviction.” State v. Wilson

(1975),

,

, syllabus.

{¶ 51} Furthermore, in State v. Payne, Summit App. No. 21178,

, the court found that the defendant would not suffer any collateral

disability or loss of civil rights where the six-month misdemeanor assault sentence

ran concurrently with a longer felony sentence, and the misdemeanor sentence

had been fully served. {¶ 52} As defendant has served his sentence on the two misdemeanor

charges, his sixth assignment of error is overruled as moot.

{¶ 53} In defendant’s seventh assignment of error, he argues that:

{¶ 54} “VII. Defendant was denied due process of law when the court

[failed] to give an accomplice instruction concerning the testimony of [mother].”

{¶ 55} Specifically, defendant argues that the court should have given the

jury a cautionary instruction concerning mothers’ testimony against him because

mother was an accomplice to the offenses. However, because defendant failed

to request this instruction, we review the issue for plain error. Crim.R. 52(B).

{¶ 56} Generally, accomplice testimony is admissible when accompanied by

the cautionary jury instruction found in R.C. 2923.03(D), which states as follows:

{¶ 57} “If an alleged accomplice of the defendant testifies against the

defendant in a case in which the defendant is charged with complicity in the

commission of * * * an offense, the court, when it charges the jury, shall state

substantially the following:

{¶ 58} ‘The testimony of an accomplice does not become inadmissible

because of his complicity, moral turpitude, or self-interest, but the admitted or

claimed complicity of a witness may affect his credibility and make his testimony

subject to grave suspicion, and require that it be weighed with great caution.

{¶ 59} ‘It is for you, as jurors, in the light of all the facts presented to you

from the witness stand, to evaluate such testimony and to determine its quality

and worth or its lack of quality and worth.’” {¶ 60} Ohio courts have found that the failure to give an accomplice

instruction was harmless when no instruction was requested and the remaining

evidence against the defendant overwhelmingly supported a conviction. State v.

Ochoa, Lucas App. No. L-03-1197,

; Cleveland Hts. v. Riley (May

20, 1999), Cuyahoga App. No. 74101.

{¶ 61} In the case at hand, although the jury was not given the accomplice

instruction, they were aware that mother was an accomplice testifying for the state

against defendant in exchange for immunity. Moreover, several other witnesses

including C.F., his sister, aunt, and babysitter corroborated mother’s testimony

that defendant broke C.F.’s arm and abused him. Additionally, the court

instructed the jury that it was to determine the credibility of the witnesses and the

weight of the testimony, taking into consideration “the interest or bias the witness

has in the outcome of the verdict.”

{¶ 62} Therefore, the failure to give the required accomplice instruction was

harmless and defendant’s seventh assignment of error is overruled.

{¶ 63} In defendant’s eighth and ninth assignments of error, he argues as

follows:

{¶ 64} “VIII. Defendant was denied due process of law when the court

ruled on defendant’s motion for judgment of acquittal.”

{¶ 65} “IX. Defendant’s convictions are against the manifest weight of the

evidence.” {¶ 66} An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at

trial to determine whether such evidence, if believed, would convince the average

mind of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is

whether, after viewing the evidence in a light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime

proven beyond a reasonable doubt. State v. Thompkins,

,

,

.

{¶ 67} To warrant reversal of a verdict under a manifest weight of the

evidence claim, this court must review the entire record, weigh the evidence and

all reasonable inferences, consider the credibility of witnesses, and determine

whether, in resolving conflicts in evidence, the jury clearly lost its way and created

such a manifest miscarriage of justice that the judgment must be reversed and a

new trial ordered.

{¶ 68} Defendant argues that his convictions are “based upon lies,

contradictions, fabrications and totally inconsistent statements on the same

subject matter by the same witness.” Specifically, defendant alleges that two of

the witnesses admitted during their testimony that they were “serial liars.” Mother

testified that she initially lied to the authorities about this case by denying

knowledge of defendant’s whereabouts and his abuse of C.F. Mother testified

that she lied to protect defendant when her mind was clouded from using drugs. Additionally, C.F. testified that, in general, he used to lie a lot. For example, he

admitted lying to healthcare providers so that he could stay in the hospital.

{¶ 69} Upon review, we summarily overrule defendant’s eighth assignment

of error, because defendant’s argument is based solely on witness credibility,

which is not a factor that affects whether a conviction is supported by sufficient

evidence. See App.R. 12(A)(2) and 16(A)(7).

{¶ 70} We turn to defendant’s argument that his convictions are against the

manifest weight of the evidence because mother’s and C.F.’s testimony was not

credible. In State v. DeHass (1967),

,

,

the Ohio Supreme Court held that “the weight to be given the evidence and the

credibility of the witnesses are primarily for the trier of the facts.” A jury is free to

believe all, part, or none of any witness’s testimony. State v. Antill (1964),

, 67,

. Additionally, the Ohio Supreme Court has

noted, “where the decision in a case turns upon credibility of testimony, and where

there exists competent and credible evidence supporting the findings and

conclusions of the trial court, deference to such findings and conclusions must be

given by the reviewing court.” Myers v. Garson (1993),

,

.

{¶ 71} In the instant case, mother and C.F. testified consistently that

defendant repeatedly abused C.F. This was corroborated by C.F.’s younger

sister, who witnessed the incident when defendant threw C.F. out of the shower.

Additionally, evidence of C.F.’s injuries was supported by aunt’s testimony, babysitter’s testimony, and C.F.’s medical records. The jury was able to see the

witnesses and judge their credibility while they were testifying.

{¶ 72} Accordingly, we find that defendant’s convictions were not against the

manifest weight of the evidence, and his ninth assignment of error is overruled.

{¶ 73} In his tenth and eleventh assignments of error, defendant contends

the following:

{¶ 74} “X. Defendant was denied his rights under the Sixth Amendment

when he was sentenced [to] a maximum consecutive sentence based upon

judicial factfinding.”

{¶ 75} “XI. Defendant was denied due process of law when the court

imposed a consecutive, maximum ten (10) year sentence for a repeat violent

offender when the court failed to make the statutory findings.”

{¶ 76} In the instant case, the court sentenced defendant to the maximum

ten years in prison for the rape conviction, the maximum eight years for felonious

assault, and the maximum ten years for the repeat violent offender specification,

to run consecutive to one another for an aggregate sentence of 28 years in prison.

The sentence for defendant’s remaining counts was to run concurrently.

{¶ 77} The Ohio Supreme Court set forth the standard for reviewing felony

sentencing in State v. Kalish,

,

,

. See, also, State v. Foster,

,

,

. Kalish, in a plurality decision, holds that appellate courts must apply a

two-step approach when analyzing alleged error in a trial court’s sentencing. “First, they must examine the sentencing court’s compliance with all applicable

rules and statutes in imposing the sentence to determine whether the sentence is

clearly and convincingly contrary to law. If this first prong is satisfied, the trial

court’s decision shall be reviewed under an abuse-of-discretion standard.” Id. at

¶4. Additionally, in State v. Hodge,

,

,

, ¶39, the Ohio Supreme Court held that “trial judges are not obligated to

engage in judicial fact-finding prior to imposing consecutive sentences * * *.”

{¶ 78} In the instant case, defendant does not argue that his sentence is

contrary to law, and upon review, we find that it is within the statutory range and

does not violate the first prong of Kalish. Furthermore, we find that the court

acted within its discretion when sentencing defendant to 28 years in prison.

{¶ 79} The sentencing transcript shows that the trial court considered the

facts of the case, the seriousness of the offenses, defendant’s lengthy criminal

record, and lack of remorse. It also shows that the “court has considered the

seriousness and recidivism factors and purposes and principles of Senate Bill 2.

Prison is very expensive in this state, and in some cases, it’s well worth it. This is

one of those cases * * * You are a sadistic bully who preys on weak, defenseless

individuals. You picked on a defenseless, little boy and used him as your

punching bag for years.”

{¶ 80} The trial court properly considered the factors in R.C. 2929.12 and

adhered to the purposes and principles of sentencing set forth in R.C. 2929.11. Therefore, this court cannot say that the trial court abused its discretion in

imposing maximum consecutive sentences in this case.

{¶ 81} Accordingly, the tenth and eleventh assignments of error are

overruled.

{¶ 82} In his twelfth assignment of error, defendant argues that:

{¶ 83} “XII. Defendant was subjected to unconstitutional multiple

punishments when the court failed to merge various counts of the indictment.”

{¶ 84} Specifically, defendant argues that the court failed to merge his

felonious assault, domestic violence, and child endangering convictions for

purposes of sentencing. He further argues that his rape and kidnapping

convictions should have merged for sentencing; however, a cursory review of the

record shows that the court merged these two convictions, and this argument is

without merit.

{¶ 85} Defendant failed to object to the court’s imposition of multiple

sentences and has therefore waived all but plain error. Under Crim.R. 52(B),

“[p]lain errors or defects affecting substantial rights may be noticed although they

were not brought to the attention of the court.” The Ohio Supreme Court has

expressly held that the imposition of multiple sentences for allied offenses of

similar import is plain error. State v. Underwood,

,

,

, ¶31, citing State v. Yarbrough,

,

,

, ¶96-102. {¶ 86} The Ohio Supreme Court recently established the proper analysis for

determining whether offenses qualify as allied offenses subject to merger pursuant

to R.C. 2941.25 in State v. Johnson,

,

,

, ¶48-50 (emphasis in original; internal citations omitted).

{¶ 87} “In determining whether offenses are allied offenses of similar import

under R.C. 2941.25(A), the question is whether it is possible to commit one

offense and commit the other with the same conduct, not whether it is possible to

commit one without committing the other. * * * If the offenses correspond to such a

degree that the conduct of the defendant constituting commission of one offense

constitutes commission of the other, then the offenses are of similar import.

{¶ 88} “‘If the multiple offenses can be committed by the same conduct, then

the court must determine whether the offenses were committed by the same

conduct, i.e., ‘a single act, committed with a single state of mind.’

{¶ 89} “If the answer to both questions is yes, then the offenses are allied

offenses of similar import and will be merged.”

{¶ 90} Felonious assault is defined in R.C. 2903.11(A)(1) as follows: “No

person shall knowingly * * * [c]ause serious physical harm to another * * *.”

Domestic violence is defined in R.C. 2919.25(A) as follows: “No person shall

knowingly cause * * * physical harm to a family or household member.”

Endangering children is defined in R.C. 2919.22(A) as follows: “No person, who is

the parent, guardian, custodian, person having custody or control, or person in

loco parentis of a child under eighteen years of age * * * shall create a substantial risk to the health or safety of the child, by violating a duty of care, protection, or

support.” Additionally, defendant was convicted of a furthermore clause, stating

that the child endangerment “violation resulted in serious physical harm * * *.”

{¶ 91} In analyzing these three offenses under Johnson, we find that they

can be committed by the same conduct. Defendant was indicted for one count of

felonious assault, one count of domestic violence, and five counts of endangering

children for conduct that occured between August 22 and 25, 2005. Evidence

presented at trial shows that defendant whipped C.F. with a belt, then threw C.F.

out of the shower and injured his shoulder between these dates. We conclude

that the whipping is “a single act, committed with a single state of mind,” and the

shoulder injury is a second act conducted with a separate animus. Thus,

defendant’s convictions for four counts of endangering children regarding the

whipping should have merged for sentencing, and one count each of felonious

assault, domestic violence, and endangering children regarding the shoulder injury

should have merged for sentencing. See State v. Sutphin, Cuyahoga App. No.

96015,

; State v. Craycraft,

,

,

.

{¶ 92} Defendant’s twelfth assignment of error is sustained, and this matter

is remanded to the trial court for further proceedings concerning allied offenses.

Pursuant to State v. Whitfield,

,

,

,

¶24, the state may elect which of the offenses to pursue on resentencing.

{¶ 93} In defendant’s thirteenth assignment of error, he argues as follows: {¶ 94} “XIII. Defendant was denied due process of law when the court

imposed court costs in the judgment entry of sentence but did not do so in open

court.”

{¶ 95} R.C. 2947.23(A)(1) provides that “[i]n all criminal cases the judge or

magistrate shall include in the sentence the costs of prosecution * * * and render a

judgment against the defendant for such costs.” In State v. Joseph,

,

,

, the Ohio Supreme Court held that it is

reversible error for the trial court to impose costs in its sentencing entry when it did

not impose those costs in open court at the sentencing hearing.

{¶ 96} In the instant case, the state concedes that the trial court failed to

impose court costs during defendant’s sentencing. Accordingly, defendant’s

thirteenth assignment of error is sustained and this matter is remanded to the trial

court for the limited purpose of allowing defendant to move for waiver of court

costs.

{¶ 97} In his fourteenth and final assignment of error, defendant argues the

following:

{¶ 98} “XIV. Defendant was denied effective assistance of counsel.”

{¶ 99} Specifically, defendant argues that his trial counsel was ineffective for

failing to request merger of allied offenses at sentencing, failing to move for

dismissal for violation of speedy trial, and failing to dismiss counts barred by the

statute of limitations. {¶ 100} “To substantiate a claim of ineffective assistance of counsel, a

defendant must demonstrate that (1) the performance of defense counsel was

seriously flawed and deficient, and (2) the result of defendant’s trial or legal

proceeding would have been different had defense counsel provided proper

representation. Strickland v. Washington (1984),

,

,

; State v. Brooks (1986),

,

. In

State v. Bradley, the Ohio Supreme Court truncated this standard, holding that

reviewing courts need not examine counsel’s performance if the defendant fails to

prove the second prong of prejudicial effect. State v. Bradley (1989),

,

.

{¶ 101} Upon review we find that defendant has failed to show that his

counsel’s alleged omissions had a prejudicial effect on the outcome of trial. First,

the failure to request merger of allied offenses is rendered moot by the disposition

of defendant’s twelfth assignment of error. Second, defendant fails to show that

he was denied the right to a speedy trial, arguing summarily that he was “in jail for

over one (1) year * * *.” Third, we overruled defendant’s assignment of error

concerning the statute of limitations for misdemeanor offenses.

{¶ 102} Accordingly, defendant’s final assignment of error is overruled.

{¶ 103} Judgment affirmed in part, reversed in part and remanded for a

limited sentencing hearing to address the issues of merger of allied offenses and

court costs. {¶ 104} It is ordered that appellee and appellant split the costs herein

taxed.

{¶ 105} The court finds there were reasonable grounds for this appeal.

{¶ 106} It is ordered that a special mandate issue out of this court

directing the common pleas court to carry this judgment into execution. The

defendant’s conviction having been affirmed, any bail pending appeal is

terminated. Case remanded to the trial court for execution of sentence.

{¶ 107} A certified copy of this entry shall constitute the mandate

pursuant to Rule 27 of the Rules of Appellate Procedure.

JAMES J. SWEENEY, JUDGE

MARY EILEEN KILBANE, A.J., CONCURS; COLLEEN CONWAY COONEY, J., CONCURS IN JUDGMENT ONLY